Chinnan and Another vs State

Janarthanam, J.—Appellants are accused 1 and 2 in Sessions Case No. 120 of 1985 on the file of Court of Session, Ramanathapuram

Division at Madurai. Each of them was found guilty u/s 302 read with 34, IPC, convicted thereunder and sentenced to imprisonment for life.

Aggrieved by the said conviction and sentence, the present action had been resorted to.

Brief facts are:

(a) Accused 1 and 2 are residents of Then Thirupachethi Village which lies within the jurisdiction of Thirupachethi police station limits. The second

accused is the cousin of the first accused. The first accused got married to one Mahalakshmi and the spouses were blessed with seven children.

The wife of the first accused, Mahalakshmi, is non else than the daughter of one Veerabadran, born through his first wife Chinnakannammal,

P.W.I, Chandrasekaran (since deceased) and P.W.3 are the brothers of the said Mahalakshmi.

(b) The said Veerabadran''s second wife is one Ammathai. Through Ammathai, four offspring''s -daughters came into existence. One of them is by

name Kousalya. The said Kousalya was given in marriage to one Masanam at Athikarai village. The matrimonial home of Kousalya and Masanam

did not appear to sail in calm waters and consequently, somehow or other Kousalya got divorced from her husband Masanam and she started

living with her parents.

(c) Whilst so, the first accused got friendly with her. Subsequently the friendly relationship of the first accused with Kousalya resulted in some sort

of incestuous relationship between them. As a consequence it so happened that sometime prior to the occurrence, the first accused eloped with the

said Kousalya and got her married for the second time, deserting his wife Mahalakshmi and her seven children. P.W.I, the deceased and other

elders in the family did not at all like the marriage of the first accused with Kousalya. But the relatives of the first accused did not at all object to the

said marriage. However, P.W. 1 the deceased and other elders felt that the first accused should not return to the village as the family life with

Kousalya was likely to put the family into sham disgrace. Notwithstanding such remarks, the first accused returned to the village with Kousalya and

started living there.

(d) Some three days prior to the occurrence, which event happened on 12.8.1984, when P.W.3 and the deceased were working in the field, the

first accused was stated to have demanded from the deceased to repay a loan which his father procured from a jiggery merchant for the purpose

of raising sugar-cane. The deceased in turn did not comply with the request of the first accused and he appeared to have replied that if notice did

come, he would make necessary arrangements for repaying the loan and he would be the last person to make payment through the first accused.

The first accused took it as an affront and he was stated to have gone away from the scene proclaiming that in case he had not returned the loan

amount to him to be paid by him to the jiggery merchant, there was every likelihood of some perilous consequence to his life.

(e) On the evening of the day of the occurrence, P.W. 1, the deceased and his brother-in-law P.W.2 went to Thirupachethi for taking tea. One

Azhagirisami also met them at Thirupachethi. After taking tea, P.W.1 and 2 the deceased and the said Azhagirisami were returning to their village.

The time was then 9:45 p.m. When they were reaching near Pillaiyar Temple situate adjacent to the railway station there of which P.W.5 was the

Station Master, accused 1 and 2 were stated to be coming from the opposite direction. On sighting the deceased, the first accused appeared to

have claimed that the deceased was responsible for putting him to sham disgrace before the pubic and so saying, he Was stated to have whipped

out a knife from his waist and inflicted a stab, which landed on the upper part of his abdomen and at that time, the second accused was stated to

have caught held of the deceased. The deceased on receipt of the injury, fell down and thereafter the accused ran away from there. The victim

deceased was then taken lo Thirupachethi police station by P. Ws. 1 and 2 and Azhagirisami. The victim-deceased was then in an unconscious

state.

(f) P.W.9 was the then Sub-Inspector of Police, Thirupachethi Police Station. At about 10:15 p.m. on 12.8.1984 while he was in charge of the

police station, P.W. 1 and 2 Azhagirisami brought the victim-deceased and P.W.9 found the victim-deceased not in a position to speak. So, he

recorded a statement as narrated by P.W.1. The statement is Ex.P-1. On the strength of Ex.P-1, P.W.9 registered a case in Crime No. 102 of

1984 for alleged offences under Sections 341 and 324 IPC. Ex.P-9 is the printed First Information Report. He then sent the victim-deceased with

a memo through the constable, P.W.6 to the Government Hospital, Thiruppuvanam, for the purpose of treatment.

(g) Accordingly, P.W.6 took the victim-deceased to the Government Hospital, Thimppuvanam, where P.W.8, Civil Assistant Surgeon attached to

the hospital examined the deceased at 10:40 p.m. and noted down the injuries he found on him. Ex.P-13 is the extract from the accident register.

The deceased was then restless. However at 11 p.m. he found the deceased dead. Ex.P4 is the death intimation.

(h) PW6 on receipt of Ex.P-4, death intimation, returned to the police station and handed over the same to P.W.9 at 1 a.m. on 13.8.1994. P.W.9

in turn akered the case into one u/s 302, I.P.C., prepared express First Information Report and sent the same to the concerned officials. Ex.P-10

is the express report sent to Court.

(i) P.W. 10 was the then Inspector of Police, At 4 a.m. on 13.8.1984 he received a copy of the express First Information Report and immediately

he took up the further investigation in the case. He rushed and reached the scene at 6 a.m. After inspecting the scene, he prepared Ex.P-2,

observation mahazar, in the presence of P.W.4 and another. He also drew a rough sketch of the scene Ex.P.14. At 7:30 a.m. he seized from the

scene M.O.1 blood stained earth under Ex.P-3, Exs.P-2 and P-3 were attested by P.W.4 and another. He then rushed and reached the

Government Hospital, Thimppuvanam and between 9:30 a.m. and 12:30 p.m. he held inquest over the dead body of the deceased. Ex.P-15 is the

inquest report. He examined P. Ws. 1 to 3 during inquest.

(j) After the inquest was over, P.W. 10 handed over the body of the deceased to the constable P.W.6 along with Ex.P-11, requisition for the

purpose of conducting autopsy. He also examined P. Ws.S and 6.

(k) P.W.8, the Civil Assistant Surgeon attached to the Government Hospital, Thrippuvanam. On receipt of Ex.P-11, requisition, he commenced

autopsy over the body of the deceased at 3 p.m. on 13.8.1984. Ex.P-12 is the post-mortem certificate he issued. She was of the opinion that the

deceased would appear to have died due to shock and hemorrhage about I5 to 18 hours prior to the autopsy. She would further opine that injuries

No. 1 and 2 as described in Ex.P-12 were possible by nails or by any rough object. She would further opine that injury No. 3 is possible by

stabbing with any knife and that injury No. 3 is necessarily fatal.

(1) After the autopsy was over, the constable P.W.6 seized from the body of the deceased M.O.2 shirt, M.O.3 towel, M.O.4 trouser and M.O.5

lungi and handed them over at the police station.

(m) On 14.8.1984 P.W. 10 examined P.W.9. On 20.8.1984 he examined P.W.8. On 29.8.1984 he came to understand that both the accused

surrendered before the then Judicial II Class Magistrate, Melur. On 28.9.1984 he sent Ex.P-5 requisition to the Judicial II Class Magistrate,

Sivaganga, for sending the incriminating objects to the chemical examiner for the purpose of analysis.

(n) P.W.7 was the then Head Clerk attached to Judicial II Class Magistrate, Sivaganga. On receipt of Ex.P-5, requisition, as per the directions of

learned Magistrate, he dispatched the incriminating material objects to the chemical examiner for the purpose of examination under the original of

Ex.P-6, office copy of the letter. Exs.P.7 and P-8 are respectively the reports of the chemical examiner and serologist.

(o) P.W. 10, after completing the formalities of investigation, laid the final report before the Judicial II Class Magistrate, Sivaganga as against

accused 1 and 2 for the alleged offence under Sections 302 and 34 IPC. on 14.10.1984.

4 (1) On committal, learned Sessions Judge, Ramanathapuram Division at Madurai, framed a charge against the accused u/s 302 read with 34

IPC.

(b) The accused, when questioned as respects the charge so framed, denied the same and claimed to be tried.

The prosecution in proof of the charge so framed, examined P. Ws. l to 10, filed Exs.P-1 to P-15 and marked M. Os. 1 to 5.

The accused when questioned u/s 313 Code of Criminal Procedure as respects the incriminating circumstances appearing in evidence against

them, denied their complicity in the crime. They did not choose to examine any witness on their behalf.

Learned Sessions Judge on consideration of the materials placed and after hearing the arguments of learned Public Prosecutor and learned

Counsel for the defence, however, rendered the verdict as stated above.

8(a) Mr. N. Natarajan, learned Senior Counsel appearing for the Appellants-accused, would press into service the following points for

consideration:

(1) The conviction and sentence as had been imposed upon the second accused by the Court below for the offence u/s 302 read with 34 IPC.

cannot at all be stated to be sustainable, inasmuch as any of the materials placed before the Court below does not point out his sharing of the

common intention with the first accused; and

(2) Even assuming for arguments'' sake that the materials placed on record point out that it was the hand of the first accused that was responsible

for causing the stab injury on the abdomen of the deceased on the fateful night in question, even then it cannot be stated that such an act of his, can,

by any stretch of imagination be stated to be falling under any one of the clauses of Section 300 IPC. punishable u/s 302 IPC. and if at all, this act

may squarely fall u/s 304 Part II IPC.

(b) Mr. R. Reghupathy, learned Additional Public Prosecutor would, however, repel such submissions.

The sequence of events that took place on the fateful night in question is sought to be projected by the prosecution through eye witnesses P.

Ws. 1 and 2. What all they say is that the first accused all of a sudden whipped out a knife from his waist, and inflicted a stab, which landed on the

abdomen of the deceased and at that time, the second accused caught hold of the hands of the deceased. No material had been placed to point

out that the second accused had knowledge of the possession of the weapon of offence, knife, by die first accused at the time when they were

coming together. The further puzzling fact is that nothing had been placed on record to show that the second accused joined hands with the first

accused in doing some harm or chastising the deceased for his act of putting the first accused to sham disgrace before the public at any point of

time prior to the occurrence. While the second accused was coming along with the first accused, unexpectedly and all of a sudden, the first

accused whipped out a knife kept concealed in his waist and inflicted a stab on the person of the deceased, which landed on his abdomen and at

such rime, he was stated to be catching hold of the deceased.

In such a situation, it cannot even be inferred that catching hold of the deceased by the second accused was for the purpose of facilitating the

first accused to inflict a stab on the person of the deceased, when especially no material was available to point out that at that time the deceased

attempted to run away from the scene on sighting the first accused in the company of the second accused. In such circumstances, it cannot be

stated that the evidence let in by the prosecution and the attendant circumstances do unfold any concert,. design or meeting of minds of the

Appellants in sharing the common intention for committing the heinous crime of murder of the deceased. In this view of the matter, the conviction

and sentence as had been imposed upon the second accused for the offence u/s 302 read with 34 IPC. cannot at all be stated to be sustainable in

law and the same deserves to be set aside.

There is no pale of controversy that the occurrence happened during dark hours of night, that is to say, at 9:45 p.m. The occurrence admittedly

took place near Pillaiyar Temple situate near Thirupachethi railway station, of which P.W.5 is the Station Master. No doubt true it is that as

deposited to by P.W.5, there were visible factors in the sense of electrical illuminations available within the railway station. On the question as to

whether any visible factor was available at the place where the occurrence took place, no investigation had been done. What all available is the

ipse dixit of the Station Master, P.W.5, who would say that in the road leading to the railway station from the village situate south of the railway

station, there are electric lamp posts. Having stated so, he would candidly admit during the course of cross examination mat he had not gone

towards south of the railway station at any point of time. He would also frankly admit that the aspect of the visible factor available in the road

leading to the railway station from the village situate on its south he did not remember to have stated during the course of investigation.

The fact that there was no sufficient visible factor available in the scene is of no consequence in identifying the assailants of the crime as

accused 1 and 2, in view of the facts that both the assailants, namely, accused 1 and 2 happened to be close relations of P. Ws. 1 and 2, eye

witnesses and the deceased. Even in darkness such relations can very well easily identify such assailants from their gait poise, and voice. Why we

are labouring so much on this aspect of visible factor is this: if the visible factor is absent, it is difficult, if not impossible, to decipher correctly the

description and the nature of the weapon of offence by direct witnesses like P. Ws. l and 2, apart from giving picturesque description of the place

of the body wherein such assailants intended to inflict or in fact inflicted as in the case on hand. When there is no satisfactory evidence as to the

availability of visible factor where the occurrence took place, we cannot assume and presume that the direct eye witness like P. Ws.l and 2 could

have had the opportunity of witnessing the seat or perch of injury intended to be inflicted and the nature of the weapon of offence-what kind of

knife-and what not. In such a situation, we rather feel that we are not far wrong in stating that accused No. 1 after whipping out the knife kept

concealed in his waist did inflict a stab on the person of the deceased, which unfortunately landed on the abdomen of the deceased culminating in

his death at the time of his having been examined in the hospital, which event took place at 11 p.m., that is to say, 75 minutes after the occurrence.

Pertinent it is to note that the first accused inflicted a lone and sole stab on the person of the deceased. He did not even make any attempt to

inflict any further stab on the person of the deceased. No sooner did he inflict a stab on the person of the victim-deceased, he was stated to have

run away from the scene. It is more or less a hit and runs situation. In such circumstances, it cannot be stated that he had entertained any sort of

premeditation to commit the murder of the deceased. Hence, it is legitimately permissible to infer that the first accused atleast could be imputed

with the knowledge that he was likely to cause an injury, which would likely to cause death, in which case his act of inflicting a single stab on the

person of the deceased, cannot at all be stated to have been done with any of the mens rea prescribed in any one of the clauses under S3 00 IPC.

punishable u/s 302 IPC. and his act would fall squarely u/s 304 Part II IPC. In this view of the matter, the conviction and sentence imposed on the

first accused by the Court below for the offence u/s 302 read with 34 IPC. are not sustainable and the same deserve to be set aside and instead,

he has to be found guilty under S. 304 Part II IPC.

The next question that arises for consideration is, what is the appropriate sentence that could be awarded to the first accused u/s 304 Part II

IPC. on the facts and in the circumstances of the case. Taking into consideration the fact that he is a married man with seven children, we do not

think that it would be besides justice to impose upon him the sentence of rigorous imprisonment for five years.

In the result, the appeal is partly allowed, the conviction and sentence as had been imposed upon the second accused u/s 302 read with 34

IPC. are set aside and he is acquitted thereof. The conviction and sentence as had been imposed upon the first accused by the Court below u/s

302 read with 34 IPC. are set aside and instead we find the first accused guilty u/s 304 Part II IPC. convict him thereunder and sentence him to

undergo rigorous imprisonment for five (5) years. The bail bond, if any, executed by the second accused shall stand cancelled.